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After Public Law$
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Cormac Mac Amhlaigh, Claudio Michelon, and Neil Walker

Print publication date: 2013

Print ISBN-13: 9780199669318

Published to Oxford Scholarship Online: May 2013

DOI: 10.1093/acprof:oso/9780199669318.001.0001

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The Post-national Horizon of Constitutionalism and Public Law: Paradigm Extension or Paradigm Exhaustion?

The Post-national Horizon of Constitutionalism and Public Law: Paradigm Extension or Paradigm Exhaustion?

Chapter:
(p.241) 12 The Post-national Horizon of Constitutionalism and Public Law: Paradigm Extension or Paradigm Exhaustion?
Source:
After Public Law
Author(s):

Neil Walker

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199669318.003.0012

This chapter examines how postnational constitutionalism and postnational public law have developed in ways that are both complementary and in mutual tension. To subscribe to either one is to take sides against a broad church of postnational sceptics, and instead view the legal forms and vocabulary of statehood as an indispensable aid in authorizing the expanding domain of law beyond the state. Yet postnational constitutionalists and postnational public lawyers differ in emphasis. For the former, authority flows from particular pedigree and collective subjectivity, whereas for the latter authority flows from the establishment of general ‘public’ procedures and supposedly objective standards. Other approaches seeking to reach beyond this division must appreciate that the opposition between subjective and objective, ‘input’ and ‘output’, cannot be entirely eradicated. Rather, it reflects the resilient ambivalence of the aspirational horizon of political modernity — as relevant to the postnational environment as to the state — in which values of autonomy and equality under a manufactured socio-political project have replaced notions of conformity and status in accordance with a pre-given order of things. For in these modern conditions, law must simultaneously facilitate the collective pursuit of autonomy and equality and protect the core individual expression of these values from collective encroachment.

Keywords:   postnational, constitutionalism, public law, global administrative law, societal constitutionalism, constituent power, input legitimacy, throughput legitimacy, output legitimacy

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